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2015 (9) TMI 1670 - ITAT HYDERABADDisallowance of provision for leave encashment u/s. 43B(f) - HELD THAT:- We do not see any reason to interfere with the order of the Ld. CIT(A). Even though it is a fact that Hon'ble Calcutta High Court in the case of Exide Industries Ltd., Vs. Union of India [2007 (6) TMI 175 - CALCUTTA HIGH COURT] has struck down provisions of Section 43B(f), the Hon'ble Supreme Court stayed that order. Consequently, the provisions of Section 43B(f) are applicable, CIT(A)’s order is in accordance with the principles on the subject. We however, direct the Assessing Officer (AO) to give relief to assessee in case Hon’ble Supreme Court also concurs with the opinion expressed by the Hon'ble Calcutta High Court. The ground for the time being is considered allowed for statistical purposes. Disallowance of payment of ocean freight - disallowance u/s 40(a)(ia) - Admission of additional evidence - HELD THAT:- Since the additional evidence is required to be examined as both AO and CIT(A) gave contradictory findings, in the interest of justice, we admit the additional evidence and remit the issue to the file of AO to examine the said payments and if the payments are to the agents of foreign shipping liners, we make it clear that amounts cannot be disallowed U/s. 40(a)(ia), as there is no need to make TDS on such payments. This issue was already crystalised in favour of assessee - in case the payments are made to local shipping agents of non-resident ship liners, then AO is directed to exclude the amount as provisions of Section 40(a)(ia) does not apply to the payments. With these directions, ground is considered allowed for statistical purposes. Disallowance of payment made towards transport charges - disallowance u/s. 40(a)(ia) - whether amounts are covered by the provisions of TDS or not? - HELD THAT:- AO has to establish that the payments made are covered by the provisions of TDS. It was submitted that these are Hamali charges/local auto charges and these payments were below ₹ 20,000/-. In case assessee reimburses said amounts, there is no need for deduction of TDS. Just because single debit entry was made, it cannot be automatically considered that amount is covered by provisions of Section 40(a)(ia). AO is bound to examine the payments made and whether each amount is liable for deduction of tax or not, therefore even in the above three cases, AO has to establish that the amounts paid are required to be covered under the provisions of TDS. Therefore, we restore the examination of the amounts to the file of AO to examine whether the said reimbursement made by the assessee are covered by the provisions of TDS so as to attract disallowance u/s. 40(a)(ia). Appeal allowed for statistical purposes.
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